Exhibit 99.3
EXECUTION COPY
RECEIVABLES PURCHASE AGREEMENT
between
REGIONS BANK,
as Seller,
and
REGIONS ACCEPTANCE LLC,
as Depositor
Dated as of November 7, 2003
Table of Contents
Page
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Article I
Certain Definitions
Article II
Conveyance of Receivables
Section 2.01. Conveyance of Receivables......................................3
Section 2.02. The Closing....................................................4
Article III
Representations and Warranties
Section 3.01. Representations and Warranties of the Depositor................5
Section 3.02. Representations and Warranties of the Seller...................6
Article IV
Conditions
Section 4.01. Conditions to Obligation of the Depositor.....................15
Section 4.02. Conditions to Obligation of the Seller........................16
Article V
Covenants of the Seller
Section 5.01. Protection of Right, Title and Interest.......................17
Section 5.02. Other Liens or Interests......................................18
Section 5.03. Costs and Expenses............................................18
Section 5.04. Hold Harmless.................................................18
Article VI
Miscellaneous Provisions
Section 6.01. Obligations of Seller.........................................19
Section 6.02. Repurchase Events.............................................19
Section 6.03. Depositor Assignment of Repurchased Receivables...............19
Section 6.04. Transfer to the Issuer........................................19
Section 6.05. Amendment.....................................................19
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Section 6.06. Waivers.......................................................20
Section 6.07. Notices.......................................................20
Section 6.08. Costs and Expenses............................................20
Section 6.09. Representations of the Seller and the Depositor...............20
Section 6.10. Confidential Information......................................21
Section 6.11. Headings and Cross-References.................................21
Section 6.12. GOVERNING LAW.................................................21
Section 6.13. Counterparts..................................................21
Section 6.14. Third Party Beneficiary.......................................21
Section 6.15. No Proceedings................................................21
Exhibit A Matters Addressed in Opinion of Seller's Counsel
Schedule I Schedule of Receivables
Schedule II Perfection Representations, Warranties and Covenants
Schedule III Location of Receivable Files
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RECEIVABLES PURCHASE AGREEMENT dated as of November 7, 2003 between
REGIONS BANK, an Alabama state banking corporation as seller (the "Seller")
and REGIONS ACCEPTANCE LLC, a Delaware limited liability company, as depositor
(the "Depositor").
RECITALS
WHEREAS, in the regular course of its business, the Seller has originated
and purchased certain motor vehicle retail installment sale contracts and
retail installment loan contracts secured by new and used automobiles and
light-duty trucks;
WHEREAS, the Seller and the Depositor wish to set forth the terms
pursuant to which such contracts are to be sold by the Seller to the
Depositor; and
WHEREAS, the Depositor intends, concurrently with its purchase hereunder,
to convey all of its right, title and interest in and to all of such contracts
to Wachovia Bank of Delaware, National Association, acting not in its
individual capacity but solely as Owner Trustee of Regions Auto Receivables
Trust 2003-2 (the "Issuer") pursuant to a Sale and Servicing Agreement dated
as of November 7, 2003 (as amended, supplemented or otherwise modified from
time to time, the "Sale and Servicing Agreement"), by and among the Issuer,
the Depositor, the Seller, Regions Bank, as Master Servicer, Administrator and
Custodian, and The Bank of New York, as Indenture Trustee, and the Issuer
intends to pledge all of its right, title and interest in and to such
contracts to the Indenture Trustee pursuant to the Indenture dated as of
November 7, 2003 (as amended, supplemented or otherwise modified from time to
time, the "Indenture"), by and between the Issuer and the Indenture Trustee.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration and the mutual terms and covenants contained herein,
the parties hereto agree as follows:
Article I
Certain Definitions
Terms not defined in this Agreement shall have the meanings assigned
thereto in the Sale and Servicing Agreement or the Indenture. As used in this
Agreement, the following terms shall, unless the context otherwise requires,
have the following meanings (such meanings to be equally applicable to the
singular and plural forms of the terms defined):
"Agreement" shall mean this Receivables Purchase Agreement, as the same
may be amended, supplemented or otherwise modified from time to time.
"Alabama Act" shall have the meaning set forth in Section 2.01(b).
"Commission" means the Securities and Exchange Commission or any
successor agency thereto.
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"Conveyed Assets" shall have the meaning set forth in Section 2.01.
"Depositor" shall mean Regions Acceptance LLC, a Delaware limited
liability company and its successors and assigns.
"FDIC Rule" means 12 C.F.R. Section 360.6, and any successor provision.
"Indenture" shall have the meaning set forth in the recitals.
"Insolvency Proceeding" shall mean a bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, conservatorship,
receivership or other proceeding under any federal or state bankruptcy,
insolvency or similar law.
"Lien Certificate" means with respect to a Financed Vehicle, an original
certificate of title, certificate of lien or other notification issued by the
Registrar of Titles of the applicable State to a secured party which indicates
that the lien of the secured party on the Financed Vehicle is recorded on the
original certificate of title. In any jurisdiction in which the original
certificate of title is required to be given to the Obligor, the term "Lien
Certificate" shall mean only a certificate or notification issued to a secured
party.
"Prospectus" shall have the meaning set forth in the Underwriting
Agreement.
"Receivable" means any Contract listed on Schedule I hereto (which
Schedule may be in the form of microfiche or electronic format).
"Registrar of Titles" means with respect to any State, the governmental
agency or body responsible for the registration of, and the issuance of
certificates of title relating to, motor vehicles and liens thereon.
"Registration Statement" means Registration Statement No. 333-100339
filed by the Depositor with the Commission in the form in which it became
effective on December 8, 2002.
"Repurchase Event" shall have the meaning specified in Section 6.02.
"Sale and Servicing Agreement" shall have the meaning set forth in the
recitals.
"Schedule of Receivables" shall mean the list of Receivables annexed
hereto as Schedule I (which Schedule may be in the form of microfiche or
electronic format).
"Seller" shall mean Regions Bank and its successors and assigns.
"Underwriters" means each of ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
Company, Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated.
"Underwriting Agreement" means the Underwriting Agreement dated November
5, 2003 relating to Regions Auto Receivables Trust 2003-2 among the Seller,
the Depositor and the Underwriters.
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Article II
Conveyance of Receivables
Section 2.01. Conveyance of Receivables.
(a) In consideration of the Depositor's delivery to or upon the order of
the Seller on the Closing Date of $616,233,525.48 in cash and and an increase
in the Bank's investment in the Depositor (the "Purchase Price"), the Seller
does hereby sell, transfer, set over and otherwise convey to the Depositor,
without recourse (subject to the obligations of the Seller set forth herein)
all right, title, and interest of the Seller in and to:
(i) the Receivables and all monies received thereon on and after the
Cutoff Date;
(ii) the security interests in the Financed Vehicles and any
accessions thereto granted by the related Obligors pursuant to the
Receivables and any other interest of the Seller in such Financed
Vehicles;
(iii)any Liquidation Proceeds and any other proceeds with respect to
the Receivables from claims on any physical damage, credit life or
disability insurance policies covering Financed Vehicles or Obligors,
including any vendor's single interest or other collateral protection
insurance policy;
(iv) any property that shall have secured a Receivable and that
shall have been acquired by or on behalf of the Seller;
(v) the proceeds from any Master Servicer's errors and omissions
protection policy, any fidelity bond and any blanket physical damage
policy, to the extent such proceeds relate to any Financed Vehicle;
(vi) all documents and other items contained in the Receivable
Files;
(vii)all accounts, money, chattel paper, securities, instruments,
documents, deposit accounts, certificates of deposit, letters of credit,
advices of credit, banker's acceptances, uncertificated securities,
general intangibles, contract rights, goods and other property consisting
of, arising from or relating to any and all of the foregoing; and
(viii) the proceeds of any and all of the foregoing (collectively,
with the assets listed in clauses (i) through (vii) above, the "Conveyed
Assets").
(b) The Seller and the Depositor intend that the transfer of the assets
by the Seller to the Depositor pursuant to this Agreement be a sale of the
ownership interest in such assets to the Depositor (for all non-tax purposes),
rather than the mere granting of a security interest to secure a borrowing and
in furtherance thereof:
(i) the Seller and the Depositor shall record each such transfer as
a sale or purchase (as the case may be) on its books and records for
legal purposes;
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(ii) the Conveyed Assets shall be deemed to no longer be the
property, assets or rights of the Seller. The Seller, its creditors, or,
in any Insolvency Proceeding with respect to the Seller or the Seller's
property, a bankruptcy trustee, conservator, receiver, debtor, debtor in
possession or similar person, shall have no rights, legal or equitable,
whatsoever to reacquire, reclaim, recover, repudiate, disaffirm, redeem
or recharacterize as property of the Seller, in whole or in part, the
Conveyed Assets;
(iii)in the event of an Insolvency Proceeding with respect to the
Seller or the Seller's property, such Conveyed Assets shall not be deemed
to be part of the Seller's property, assets, rights or estate; and
(iv) the parties hereto intend that (A)(i) the Asset-Backed
Securities Facilitation Act of Alabama (Alabama Act No. 2001-779, the
"Alabama Act") shall apply to the transactions contemplated in this
Agreement and (ii) the transactions contemplated in this Agreement, taken
as a whole, shall constitute a "securitization transaction" within the
meaning of such term as set forth in the Alabama Act and (B) (i) the FDIC
Rule shall apply to the transactions contemplated by this Agreement and
the other Basic Documents and (ii) the transaction contemplated by this
Agreement and the other Basic Documents, taken as a whole, constitute a
"securitization" within the meaning of the FDIC Rule.
In the event, however, that such transfer is deemed not to be a sale but
to be a mere security interest to secure a borrowing, the Seller hereby
grants, and the parties intend that the Seller shall have granted, to the
Depositor a security interest in the Conveyed Assets, which security interest
shall be perfected and of first priority, and this Agreement shall constitute
a security agreement under applicable law. Pursuant to the Sale and Servicing
Agreement and Section 6.04 hereof, the Depositor may transfer to the Issuer
(i) all or any portion of the assets assigned to the Depositor hereunder, (ii)
all or any portion of the Depositor's rights against the Seller under this
Agreement and (iii) all proceeds thereof. Such assignment may be made by the
Depositor with or without an assignment by the Depositor of its rights under
this Agreement, and without further notice to or acknowledgement from the
Seller. The Seller waives, to the extent permitted under applicable law, all
claims, causes of action and remedies, whether legal or equitable (including
any right of setoff), against the Depositor or any assignee of the Depositor
relating to such action by the Depositor in connection with the transactions
contemplated by the Sale and Servicing Agreement. Notwithstanding anything
herein to the contrary, nothing in this Section shall limit any contractual
rights in this Agreement or any other document executed in connection with
this Agreement that require or permit the transfer or return of the Conveyed
Assets to the Seller.
Section 2.02 The Closing. The sale and purchase of the Receivables shall
take place at a closing at the offices of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on the Closing Date, simultaneously
with the closing under (a) the Sale and Servicing Agreement, (b) the Indenture
and (c) the Trust Agreement.
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Article III
Representations and Warranties
Section 3.01. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants as follows to the Seller and the
Indenture Trustee as of the date hereof and the Closing Date:
(a) Organization and Good Standing. The Depositor is duly organized and
validly existing as a limited liability company in good standing under the
laws of the state of its formation, with all requisite power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted.
(b) Due Qualification. The Depositor is duly qualified to do business as
a foreign limited liability company in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions where the failure to do
so would materially and adversely affect the Depositor's ability to acquire
the Receivables or the validity or enforceability of the Receivables.
(c) Power and Authority. The Depositor has the limited liability company
power and authority to execute, deliver and perform this Agreement and the
other Basic Documents to which it is a party and to carry out their respective
terms; the Depositor has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Issuer, and the
Depositor shall have duly authorized such sale and assignment to the Issuer by
all necessary limited liability company action; and the execution, delivery
and performance of this Agreement and the other Basic Documents to which the
Depositor is a party have been duly authorized by the Depositor by all
necessary limited liability company action.
(d) Binding Obligation. This Agreement and the other Basic Documents to
which the Depositor is a party, when duly executed and delivered by the other
parties hereto and thereto, shall constitute legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in accordance
with their respective terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or similar laws now or
hereafter in effect relating to or affecting creditors' rights generally and
to general principles of equity (whether applied in a proceeding at law or in
equity).
(e) No Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time or both) a default under, the limited
liability company agreement or certificate of formation of the Depositor, or
any material indenture, agreement or other instrument to which the Depositor
is a party or by which it is bound, or violate any law, rules or regulation
applicable to the Depositor of any court or federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor.
(f) No Proceedings. There are no proceedings or investigations pending
or, to the Depositor's knowledge, threatened against the Depositor before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the
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Depositor or its properties (i) asserting the invalidity of this Agreement or
any other Basic Document to which the Depositor is a party, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement or any other Basic Document to which the Depositor is a party or
(iii) seeking any determination or ruling that might materially and adversely
affect the performance by the Depositor of its obligations under, or the
validity or enforceability of, this Agreement or any other Basic Document to
which the Depositor is a party.
(g) No Consents. The Depositor is not required to obtain the consent of
any other party or any consent, license, approval, registration,
authorization, or declaration of or with any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity, or
enforceability of this Agreement or any other Basic Document to which it is a
party that has not already been obtained.
Section 3.02. Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants as follows to the Depositor
and the Indenture Trustee as of the date hereof and as of the Closing Date:
(i) Organization and Good Standing. The Seller is a banking
corporation duly organized and validly existing under the laws of the
jurisdiction of its organization and continues to hold a valid
certificate to do business as such, and has the power to own its assets
and to transact the business in which it is currently engaged. The Seller
is duly authorized to transact business and has obtained all necessary
licenses and approvals, and is in good standing in each jurisdiction in
which the character of the business transacted by it or any properties
owned or leased by it requires such authorization.
(ii) Power and Authority. The Seller has the power and authority to
make, execute, deliver and perform this Agreement and all of the
transactions contemplated under this Agreement and the other Basic
Documents to which the Seller is a party, and has taken all necessary
action to authorize the execution, delivery and performance of this
Agreement and the other Basic Documents to which the Seller is a party.
When executed and delivered, this Agreement and the other Basic Documents
to which the Seller is a party will constitute legal, valid and binding
obligations of the Seller enforceable in accordance with their respective
terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies and except as
enforcement of such terms may be limited by receivership, conservatorship
and supervisory powers of bank regulatory agencies generally.
(iii) No Violation. The execution, delivery and performance by the
Seller of this Agreement and the other Basic Documents to which the
Seller is a party will not violate any provision of any existing state,
federal or, to the best knowledge of the Seller, local law or regulation
or any order or decree of any court applicable to the Seller or any
provision of the articles of association or incorporation or the bylaws
of the Seller, or constitute a breach of any material mortgage,
indenture, contract or other agreement to which the Seller is a party or
by which the Seller may be bound or result in the creation
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or imposition of any lien upon any of the Seller's properties pursuant to
any such mortgage, indenture, contract or other agreement (other than
this Agreement).
(iv) No Proceedings. There are no proceedings or investigations
pending or, to the Seller's knowledge, threatened against the Seller
before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or its
properties (i) asserting the invalidity of this Agreement or any other
Basic Document to which the Seller is a party, (ii) seeking to prevent
the consummation of any of the transactions contemplated by this
Agreement or any other Basic Document to which the Seller is a party or
(iii) seeking any determination or ruling that might materially and
adversely affect the performance by the Seller of its obligations under,
or the validity or enforceability of, this Agreement or any other Basic
Document to which the Seller is a party.
(v) Chief Executive Office. The chief executive office of the Seller
is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
(vi) No Consents. The Seller is not required to obtain the consent
of any other party or any consent, license, approval, registration,
authorization, or declaration of or with any governmental authority,
bureau or agency in connection with the execution, delivery, performance,
validity, or enforceability of this Agreement or any other Basic Document
to which it is a party that has not already been obtained.
(vii)No Notice. The Seller represents and warrants that it acquired
title to the Receivables in good faith, without notice of any adverse
claim.
(viii) Bulk Transfer. The Seller represents and warrants that the
transfer, assignment and conveyance of the Receivables by the Seller
pursuant to this Agreement are not subject to the bulk transfer laws or
any similar statutory provisions in effect in any applicable
jurisdiction.
(ix) Seller Information. No certificate of an officer, statement or
document furnished in writing or report delivered pursuant to the terms
hereof by the Seller contains any untrue statement of a material fact or
omits to state any material fact necessary to make the certificate,
statement, document or report not misleading.
(x) Ordinary Course. The transactions contemplated by this Agreement
and the other Basic Documents to which the Seller is a party are in the
ordinary course of the Seller's business.
(xi) Solvency. The Seller is not insolvent, nor will the Seller be
made insolvent by the transfer of the Receivables, nor does the Seller
anticipate any pending insolvency.
(xii) Legal Compliance. The Seller is not in violation of, and the
execution and delivery by the Seller of this Agreement and the other
Basic Documents to which the Seller is a party and its performance and
compliance with the terms of this Agreement and the other Basic Documents
to which the Seller is a party will not constitute a
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violation with respect to, any order or decree of any court or any order
or regulation of any federal, state, municipal or governmental agency
having jurisdiction, which violation would materially and adversely
affect the Seller's condition (financial or otherwise) or operations or
any of the Seller's properties or materially and adversely affect the
performance of any of its duties under the Basic Documents.
(xiii) Creditors. The Seller did not sell the Receivables to the
Depositor with any intent to hinder, delay or defraud any of its
creditors.
(xiv) Official Records. This Agreement and the other Basic Documents
to which the Seller is a party constitute official records of the Seller
for purposes of Sections 11(d)(9), 11(n)(4)(I) and Section 13(e) of the
Federal Deposit Insurance Act, as amended.
(xv) Perfection Representation. The Seller makes all of the
representations, warranties and covenants set forth in Schedule II.
(b) The Seller makes the following representations and warranties with
respect to the Receivables, on which the Depositor relies in accepting the
Receivables and in transferring the Receivables to the Issuer under the Sale
and Servicing Agreement, and on which the Issuer relies in pledging the same
to the Indenture Trustee. Such representations and warranties speak as of the
execution and delivery of this Agreement and as of the Closing Date, but shall
survive the sale, transfer and assignment of the Receivables to the Depositor,
the subsequent sale, transfer and assignment of the Receivables by the
Depositor to the Issuer pursuant to the Sale and Servicing Agreement and the
pledge of the Receivables by the Issuer to the Indenture Trustee pursuant to
the Indenture.
(i) Characteristics of Receivables. Each Receivable (A) was
originated in the United States of America by the Seller or by a Dealer
located in the United States of America for the retail sale of a Financed
Vehicle, in each case, in the ordinary course of the applicable Dealer's
business in accordance with the Seller's credit policies as of the date
of origination or acquisition of the related Receivable, is payable in
United States dollars, has been fully and properly executed by the
parties thereto, has been originated by the Seller through or purchased
by the Seller from such Dealer under an existing Dealer Agreement (or
approved form of assignment) and, in the case of each Receivable
originated by a Dealer and sold to the Seller, has been validly assigned
by such Dealer to the Seller, (B) has created or shall create a valid,
subsisting and enforceable security interest in favor of the Seller in
the Financed Vehicle, which security interest, by virtue of the related
Lien Certificate, shall be perfected and prior to any other interest in
such Financed Vehicle, and which security interest is assignable by the
Seller and reassignable by the assignee, except with respect to
Receivables representing less than 0.03% of the Initial Pool Balance, for
which the related Lien Certificates show World Omni named as the first
lien holder and which security interests have been assigned to the Seller
and are assignable by the Seller and reassignable by the assignee, (C)
contains customary and enforceable provisions such that the rights and
remedies of the holder thereof are adequate for realization against the
collateral of the benefits of the security, (D) provides for fixed level
monthly payments (provided that the payment in the last month of the term
of the Receivable may be minimally different from the level scheduled
payments)
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that fully amortize the Amount Financed by maturity and yield interest at
the APR borne by the Contract and (E) amortizes using the simple interest
method.
(ii) Compliance with Law. Each Receivable complied at the time it
was originated or made, and at the Closing Date complies, in all material
respects with all requirements of applicable federal, state and, to the
best knowledge of the Seller, local laws, rulings and regulations
thereunder.
(iii) Binding Obligation. Each Receivable represents the genuine,
legal, valid and binding payment obligation of the Obligor thereon,
enforceable by the holder thereof in accordance with its terms, except
(A) as enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the enforcement of creditors'
rights generally and by equitable limitations on the availability of
specific remedies, regardless of whether such enforceability is
considered in a proceeding in equity or at law and (B) as such Receivable
may be modified by the application after the Closing Date of the Soldiers
and Sailors Civil Relief Act of 1940, as amended, or by any similar
applicable State law.
(iv) No Government Obligor. No Receivable is due from the United
States of America or any State or any agency, department, subdivision or
instrumentality thereof.
(v) Obligor Bankruptcy. To the best of the Seller's knowledge, at
the Cutoff Date, no Obligor is or has been, since the origination of the
related Receivable, the subject of a bankruptcy proceeding.
(vi) Schedule of Receivables. The information set forth in Schedule
I to this Agreement with respect to the Receivables is true and correct
in all material respects as of the beginning of business on the Cutoff
Date.
(vii) Marking Records. By the Closing Date, the Seller will have
caused its computer and accounting records relating to each Receivable to
be marked to show that the Receivables have been sold to the Depositor by
the Seller and transferred and assigned by the Depositor to the Issuer in
accordance with the terms of the Sale and Servicing Agreement.
(viii) Computer Tape. The computer tape regarding the Receivables
made available by the Seller to the Depositor is complete and accurate in
all material respects as of the Closing Date.
(ix) No Adverse Selection. No selection procedures believed by the
Seller to be adverse to the Noteholders or the Certificateholders were
utilized in selecting the Receivables.
(x) Tangible Chattel Paper. Each Receivable constitutes tangible
chattel paper within the meaning of the UCC as in effect in the State of
origination.
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(xi) One Original. There is only one original executed copy of each
Receivable.
(xii) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Vehicle been released
from the Lien of the related Receivable in whole or in part. None of the
terms of any Receivable has been waived, altered or modified in any
respect since its origination, except by instruments or documents
identified in the related Receivable File; and no Receivable has been
granted an extension except as noted in the servicing records of such
Receivable and each such extension has been granted in accordance with
the Seller's extension policy set forth in Exhibit D-1 to the Sale and
Servicing Agreement. No Receivable has been modified as a result of the
application of the Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
(xiii) Lawful Assignment. No Receivable has been originated in, or
is subject to the laws of, any jurisdiction the laws of which would make
unlawful, void or voidable the sale, transfer and assignment of such
Receivable under this Agreement or the Sale and Servicing Agreement, as
applicable, or the pledge of such Receivable under the Indenture.
(xiv) Title. It is the intention of the Seller that the transfers
and assignments herein contemplated constitute sales of the Receivables
from the Seller to the Depositor and that the beneficial interest in and
title to the Receivables not be part of the debtor's estate in the event
of the appointment of a receiver or conservator for the Seller under any
receivership, bankruptcy law, insolvency or banking law. Immediately
prior to the Closing Date, no Receivable has been sold, transferred,
assigned or pledged by the Seller to any Person other than to the
Depositor or pursuant to this Agreement (or by the Depositor to any other
Person other than to the Issuer pursuant to the Sale and Servicing
Agreement). Immediately prior to the transfers and assignments herein
contemplated, the Seller has good and marketable title to each Receivable
free and clear of all Liens, and, immediately upon the transfer thereof,
the Depositor shall have good and marketable title to each Receivable,
free and clear of all Liens and, immediately upon the transfer thereof
from the Depositor to the Issuer in accordance with the terms of the Sale
and Servicing Agreement and the representations and warranties of the
Depositor set forth therein, the Issuer shall have good and marketable
title to each Receivable, free and clear of all Liens and, immediately
upon the pledge thereof from the Issuer to the Indenture Trustee in
accordance with the terms of the Indenture, the Indenture Trustee shall
have a first priority perfected security interest in each Receivable.
(xv) Security Interest in Financed Vehicle. Immediately prior to its
sale, assignment and transfer to the Depositor pursuant to this
Agreement, each Receivable is secured by a first priority perfected
security interest in the related Financed Vehicle in favor of the Seller
as secured party, or all necessary and appropriate actions have been
commenced that will result in the valid perfection of a first priority
security interest in such Financed Vehicle in favor of the Seller as
secured party, except as noted in the following sentence. The Lien
Certificate for each Financed Vehicle shows, or if a new or replacement
Lien Certificate is being applied for with respect to such Financed
Vehicle
10
such Lien Certificate shall be received within 120 days of the Closing
Date and shall show, the Seller or its predecessor in interest named as
the original secured party under each Receivable as the holder of a first
priority security interest in such Financed Vehicle, except with respect
to Receivables representing less than 0.03% of the Initial Pool Balance,
for which the Lien Certificates show World Omni named as the original
secured party under such Receivables as the holder of a first priority
security interest in such Financed Vehicle (which Lien Certificates and
Receivables have been validly assigned to the Seller, which in turn have
been validly assigned to the Depositor pursuant to this Agreement). Each
Dealer's security interest in any Receivable originated by such Dealer
has been validly assigned by the Dealer to the Seller. The Seller's
security interest has been validly assigned to the Depositor pursuant to
this Agreement.
(xvi)All Filings Made. All filings (including UCC filings) required
to be made in any jurisdiction to give the Issuer a first perfected
ownership interest in the Receivables and the Indenture Trustee a first
priority perfected security interest in the Receivables have been made or
will be made on the Closing Date.
(xvii) No Defenses. No Receivable is subject to any right of
rescission, setoff, counterclaim or defense, including the defense of
usury, by any Obligor, whether arising out of transactions concerning the
Receivable or otherwise, and the operation of any terms of the Receivable
or the exercise by the Seller or the Obligor of any right under the
Receivable will not render the Receivable unenforceable in whole or in
part, and no such right of rescission, setoff, counterclaim or defense,
including the defense of usury, has been asserted by any Obligor with
respect thereto.
(xviii) No Default. There has been no default, breach, violation or
event permitting acceleration under the terms of any Receivable (other
than payment delinquencies of not more than 30 days) as of the Cutoff
Date, and no condition exists or event has occurred and is continuing
that with notice, the lapse of time or both would constitute a default,
breach, violation or event permitting acceleration under the terms of any
Receivable, and there has been no waiver of any of the foregoing.
(xix) Insurance. The Seller, in accordance with its customary
procedures, has required that the Obligor obtains physical damage
insurance covering each Financed Vehicle (i) in an amount at least equal
to the lesser of (a) the actual cash value of the related Financed
Vehicle or (b) the unpaid principal balance owing on such Receivable,
(ii) naming the Seller as a loss payee and (iii) insuring against loss
and damage due to fire, theft, transportation, collision and other risks
generally covered by comprehensive and collision coverage and, under the
terms of the related Receivable, the Obligor is required to maintain such
insurance.
(xx) Final Scheduled Maturity Date. No Receivable has a final
scheduled payment date later than six months prior to the Class C Final
Scheduled Payment Date.
(xxi) Certain Characteristics of the Receivables. As of the Cutoff
Date, (A) each Receivable had an original maturity of not less than 12 or
more than 73 months and (B) no Receivable was more than 30 days past due.
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(xxii) No Foreign Obligor. All of the Receivables are due from
Obligors who are citizens, or legal resident aliens, of the United States
of America.
(xxiii) No Extensions. The number or timing of scheduled payments
has not been changed on any Receivable on or before the Closing Date,
except as reflected on the computer tape delivered in connection with the
sale of the Receivables.
(xxiv) Scheduled Payments. Except with respect to Receivables
representing less than 0.05% of the Initial Pool Balance, each Receivable
had a first scheduled payment due on or prior to 45 calendar days after
the Closing Date. Each Obligor has been instructed to make all scheduled
payments to the Seller or an affiliate of the Seller. To the best
knowledge of the Seller, each Obligor has paid the entire down payment
called for by the contract.
(xxv) No Fleet Sales. None of the Receivables have been included in
a "fleet" sale (i.e., a sale to any single Obligor of more than seven
Financed Vehicles).
(xxvi) Receivable Files Complete. There exists a Receivable File
pertaining to each Receivable and such Receivable File contains, without
limitation, (A) a fully executed original of the Receivable, (B) the Lien
Certificate together with such other documents that the Seller shall keep
on file in accordance with its customary procedures evidencing the
security interest of the Seller in the related Financed Vehicle, and (C)
any and all other documents that the Master Servicer shall have kept on
file (including any in electronic format) in accordance with its
customary procedures relating to a Receivable, an Obligor or a Financed
Vehicle. Each of such documents that is required to be signed by the
Obligor has been signed by the Obligor as required, and each form
described in clauses (A), (B) and (C) above has been correctly prepared
and completed in all material respects. Notwithstanding the above, the
complete Receivable File for each Receivable, (x) shall fulfill the
documentation requirements of the Seller's credit policies as in effect
on the date of origination of such Receivable and (y) is in possession of
the Master Servicer or its designee or the Custodian or its designee, as
applicable, at the location set forth on Schedule C, on the Closing Date.
Except with respect to Receivables representing less than 0.03% of the
Initial Pool Balance, for which the related Lien Certificates show World
Omni named as the original secured party under such Receivables as the
holder of a first priority security interest in the related Financed
Vehicle (which Lien Certificates and security interests have been validly
assigned to the Seller), the blanket power of attorney granted to the
Indenture Trustee, a security agreement and the original Lien Certificate
are the only documents necessary to permit the Indenture Trustee to
submit the Lien Certificate for each Financed Vehicle for retitling in
the name of the Indenture Trustee as secured party in the event such
retitling were required or otherwise permitted under the Basic Documents.
(xxvii) No Fraud or Misrepresentation. Each Receivable that was
originated by a Dealer and was sold by the Dealer to the Seller, to the
best of the Seller's knowledge, was so originated and sold without fraud
or misrepresentation on the part of such Dealer in either case.
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(xxviii) Receivables Not Assumable. No Receivable is assumable by
another person in a manner which would release the Obligor thereof from
such Obligor's obligations to the Seller with respect to such Receivable.
(xxix) Tax Liens. To the best of the Seller's knowledge, there is no
Lien against any Financed Vehicle for delinquent taxes.
(xxx)No Impairment. The Seller has not done anything to convey any
right to any person that would result in such person having a right to
payments due under a Receivable or otherwise to impair the rights of the
Depositor in any Receivable or the proceeds thereof.
(xxxi) Servicing. Each Receivable has been serviced in conformity
with all applicable laws, rules and regulation and in conformity with the
Seller's policies and procedures which are consistent with customary,
prudent industry standards.
(xxxii) Corporate Obligors. To the best of the Seller's knowledge,
Receivables representing less than 1.32% of the Initial Pool Balance are
due from Obligors who are not natural persons.
(xxxiii) No Liens. No Liens or claims have been filed for work,
labor, or materials relating to a Financed Vehicle that are prior to, or
equal or coordinate with, the security interest in the Financed Vehicle
granted by the related Receivable.
(xxxiv) APR. No Receivable has an APR of less than 3.29% and the
weighted average of the APRs of the Receivables is 5.848%.
(xxxv) Remaining Term. Each Receivable has a remaining term of at
least 6 months and no more than 72 months.
(xxxvi) Seasoning. The weighted average number of months since the
initial installment due date for the Receivables is 3 months.
(xxxvii) Remaining Balance. Each Receivable has a remaining balance
of at least $500 and no more than $100,000.
(xxxviii) New Vehicles. Receivables representing no less than 55.44%
of the Initial Pool Balance are secured by Financed Vehicles which were
new at the date of origination.
(xxxix) No Repossessions. No Financed Vehicle has been repossessed
prior to the Closing Date.
(xl) Initial Payment. Except with respect to Receivables
representing less than 0.06% of the Initial Pool Balance, the Obligor
with respect to each Receivable originated prior to September 7, 2003 has
made at least one scheduled payment.
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(xli) No Proceedings. As of the Closing Date, there are no
proceedings pending, nor to the best of the Seller's knowledge,
threatened, wherein the Obligor or any governmental agency has alleged
that any Receivable is illegal or unenforceable.
(xlii) Dealer Agreement. Each Dealer from whom the Seller purchases
or through which the Seller originates Receivables directly has entered
into a Dealer Agreement with the Seller providing for the sale or
origination of Receivables from time to time by such Dealer to the Seller
or uses an approved form of assignment. Each Dealer Agreement and
assignment form is substantially in the form attached to the Sale and
Servicing Agreement as Exhibit D, except for immaterial modifications or
deviations from the Dealer Agreement or assignment form. Such
modifications and deviations from the Dealer Agreement or assignment form
will not have a material adverse effect on the Noteholders or
Certificateholders. Such Dealer Agreement and/or the assignment and the
Seller's usual and customary related documentation signed by or provided
to the Dealer, constitutes the entire agreement between the Seller and
the related Dealer with respect to the sale of such Receivable to the
Seller. Each applicable Dealer Agreement and form of assignment is in
full force and effect, there have been no material defaults by the Seller
under such Dealer Agreement; the Seller has fully performed all of its
obligations under such Dealer Agreement or form of assignment; the Seller
has not made any statements or representations to such Dealer (whether
written or oral) inconsistent with any term of such Dealer Agreement or
form of assignment; the purchase price for such Receivable has been paid
in full, other than any dealer reserve, by the Seller; and any payment
owed to such Dealer by the Seller is a corporate obligation of the
Seller.
(xliii) Seller's Obligations. The Seller has duly fulfilled all
obligations to be fulfilled on its part under or in connection with the
origination, acquisition and/or assignment of the Receivables.
(xliv) No Consent. To the best of the Seller's knowledge, no notice
to or consent from any Obligor is necessary to effect the acquisition of
the Receivables by the Depositor or the Trust or the pledge of the
Receivables by the Trust to the Indenture Trustee.
(xlv) No Transfer Taxes. The sale, transfer, assignment and
conveyance of the Receivables by the Seller pursuant to this Agreement is
not subject to and will not result in any tax, fee or governmental charge
payable by the Seller, the Issuer or the Indenture Trustee to any
federal, state or local government ("Transfer Taxes") other than Transfer
Taxes which have been or will be paid by the Seller as due. In the event
the Issuer or the Indenture Trustee receives actual notice of any
Transfer Taxes arising out of the transfer, assignment and conveyance of
the Receivables, on written demand by the Issuer or the Indenture
Trustee, or upon the Seller's otherwise being given notice thereof by the
Issuer or the Indenture Trustee, the Seller shall pay, and otherwise
indemnify and hold the Issuer and the Indenture Trustee harmless, on an
after-tax basis, from and against any and all such Transfer Taxes (it
being understood that the Noteholders, the Indenture Trustee and the
Issuer shall have no obligation to pay such Transfer Taxes).
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(xlvi) Other Receivables. To the best of the Seller's knowledge, no
Obligor (together with any Affiliate) is the Obligor with respect to
Receivables representing more than 0.02% of the Initial Pool Balance.
(xlvii) Initial Pool Balance. The Initial Pool Balance as of the
Cutoff Date is equal to $640,000,000.00.
(xlviii) Geographic Distribution. No more than 5.0% of the Initial
Pool Balance is attributable to Receivables with Obligors having a
billing address in any single State other than Alabama, Arkansas,
Georgia, Texas and Mississippi, which represent no more than 51.79%,
13.24%, 8.66%, 7.88% and 7.10% of the Initial Pool Balance, respectively.
(xlix) No Advances. No advances have been made to Obligors in order
to meet any representation or warranty herein set forth; provided,
however, that Receivables may have had up to two extensions prior to the
Cutoff Date, subject to the following: (A) each such extension was made
in conformity with the Extension Policy and (B) each extended Receivable
satisfies in all material respects all applicable requirements under the
Seller's credit and collection policies as of the date of its
origination.
(l) Amount Financed. At the time each Receivable was originated, the
Amount Financed was fully disbursed. There is no requirement for future
advances of principal thereunder, and all fees and expenses in connection
with the origination of such Receivable have been paid.
(li) No Consumer Leases. No Receivable constitutes a "consumer
lease" under either (a) the UCC as in effect in the jurisdiction whose
law governs the Receivable or (b) the Consumer Leasing Act, 15 U.S.C.
1667.
(lii) Co-Signatories. None of the Receivables were executed by
co-signatories that are not married to each other.
Article IV
Conditions
Section 4.01. Conditions to Obligation of the Depositor. The obligation
of the Depositor to purchase the Receivables is subject to the satisfaction of
the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Seller hereunder shall be true and correct in all material
respects on the Closing Date with the same effect as if then made, and the
Seller shall have performed all obligations to be performed by it hereunder on
or prior to the Closing Date.
(b) Computer Files Marked. The Seller shall, at its own expense, on or
prior to the Closing Date, indicate in its computer files that the Receivables
have been sold to the Depositor pursuant to this Agreement and transferred and
assigned by the Depositor to the Issuer in accordance with the terms of the
Sale and Servicing Agreement and deliver to the Depositor the
15
Schedule of Receivables, certified by the Seller's President, Vice President
or Treasurer to be true, correct and complete in all material respects.
(c) Documents to be Delivered by the Seller on the Closing Date:
(i) Reserved.
(ii) Evidence of UCC Filing. On or prior to the Closing Date, the
Seller shall record and file, at its own expense, a UCC-1 financing
statement in the State of Alabama or other appropriate filing
jurisdiction, executed by the Seller, as seller or debtor, and naming the
Depositor, as secured party, describing the Receivables and the other
assets assigned to the Depositor pursuant to Section 2.01, meeting the
requirements of the laws of each such jurisdiction and in such manner as
is necessary to perfect the sale, transfer, assignment and conveyance of
the Receivables and such other assets to the Depositor. The Seller shall
deliver to the Depositor a file-stamped copy or other evidence
satisfactory to the Depositor of such filing on or prior to the Closing
Date.
(iii) Opinions of Seller's Counsel. On or prior to the Closing Date,
the Depositor shall have received the opinions of counsel to the Seller,
in form and substance satisfactory to the Depositor, as to the matters
set forth in Exhibit A hereto and such other matters as the Depositor has
heretofore requested or may reasonably request.
(iv) Other Documents. Such other documents as the Depositor may
reasonably request.
(d) Other Transactions. The transactions contemplated by the Sale and
Servicing Agreement, the Indenture and the Trust Agreement to be consummated
on the Closing Date shall be consummated on such date.
Section 4.02. Conditions to Obligation of the Seller. The obligation of
the Seller to sell the Receivables to the Depositor is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Depositor hereunder shall be true and correct on the Closing
Date with the same effect as if then made, and the Depositor shall have
performed all obligations to be performed by it hereunder on or prior to the
Closing Date.
(b) Receivables Purchase Price. On the Closing Date, the Depositor shall
have delivered to the Seller the purchase price specified in Section 2.01
hereof.
(c) Opinion of Counsel. The Depositor shall have furnished to the Seller
and the Underwriters an Opinion of Counsel, dated the Closing Date, to the
effect that:
(i) the Depositor has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the State of
Delaware, with all limited liability company power and authority to
execute and deliver the Basic Documents and to perform its obligations
thereunder;
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(ii) each of this Agreement, the Sale and Servicing Agreement and
the Trust Agreement has been duly authorized, executed and delivered by
the Depositor and constitutes a valid and binding obligation of the
Depositor, enforceable against the Depositor in accordance with its terms
except as limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, fraudulent transfer, receivership, conservatorship
or similar laws relating to or affecting creditors' rights generally or
the rights of creditors of Alabama state banks in particular and to
general equitable principles (regardless of whether considered in a
proceeding in equity or at law), including concepts of commercial
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief;
(iii) no authorization, consent, approval or order of, or filing
with, any Delaware court or any Delaware governmental agency or
administrative body is required to be obtained by the Depositor solely as
a result of the execution and delivery by the Depositor of the Basic
Documents or the performance by the Depositor of its obligations
thereunder, except for any filings that may be required by the Uniform
Commercial Code of the State of Delaware;
(iv) the execution, delivery and performance by the Depositor of
this Agreement, the Sale and Servicing Agreement, the Trust Agreement,
the Underwriting Agreement and the Order to Authenticate and Deliver the
Certificates do not violate (i) any Delaware law, rule or regulation, or
(ii) the limited liability company agreement or certificate of formation
of the Depositor; and
(v) the Registration Statement has been declared effective under the
Securities Act and, to the best of the knowledge and information of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued under the Securities Act and no proceedings for
that purpose have been instituted or are pending or threatened by the
Commission.
(d) Other Transactions. The transactions contemplated by the Sale and
Servicing Agreement, the Indenture and the Trust Agreement to be consummated
on the Closing Date shall be consummated on such date.
Article V
Covenants of the Seller
The Seller agrees with the Depositor and the Indenture Trustee as
follows:
Section 5.01. Protection of Right, Title and Interest.
(a) Filings. The Seller shall cause at its own expense all financing
statements and continuation statements and any other necessary documents
covering the right, title and interest of the Seller, the Depositor, the Trust
and the Indenture Trustee, respectively, in and to the Receivables and the
other property included in the Trust Estate to be promptly filed and at all
times to be kept recorded, registered and filed, all in such manner and in
such places as may be
17
required by law fully to preserve and protect the right, title and interest of
the Depositor hereunder, the Trust under the Sale and Servicing Agreement and
the Indenture Trustee under the Indenture in and to the Receivables and the
other property included in the Trust Estate. The Seller shall deliver to the
Depositor and the Indenture Trustee file stamped copies of, or filing receipts
for, any document recorded, registered or filed as provided above, as soon as
available following such recordation, registration or filing. The Depositor
shall cooperate fully with the Seller in connection with the obligations set
forth above and will execute any and all documents reasonably required to
fulfill the intent of this paragraph.
(b) Name Change. If the Seller makes any change in its name, identity,
location or corporate structure that would make any financing statement or
continuation statement filed in accordance with paragraph (a) above seriously
misleading within the applicable provisions of the UCC or any title statute,
the Seller shall give the Depositor, the Indenture Trustee and the Owner
Trustee written notice thereof at least 45 days prior to such change and shall
promptly file such financing statements or amendments as may be necessary to
continue the perfection of the Depositor's interest in the property conveyed
pursuant to Section 2.01.
Section 5.02. Other Liens or Interests. Except for the conveyances
hereunder and pursuant to the Basic Documents, the Seller shall not sell,
pledge, assign or transfer to any Person, or grant, create, incur, assume, or
suffer to exist any Lien on, or any interest in, to or under the Receivables,
and the Seller shall defend the right, title and interest of the Depositor,
the Trust and the Indenture Trustee in, to and under the Receivables against
all claims of third parties claiming through or under the Seller.
Section 5.03. Costs and Expenses. The Seller agrees to pay all reasonable
costs and disbursements in connection with the perfection, as against all
third parties claiming through or under the Seller, of the Depositor's, the
Issuer's and the Indenture Trustee's right, title and interest in and to the
Receivables and the other property included in the Trust Estate.
Section 5.04. Hold Harmless. The Seller shall protect, defend, indemnify
and hold the Depositor, the Issuer, the Noteholders, the Certificateholders
and their respective assigns and their employees, officers, directors and
agents harmless from and against all losses, liabilities, claims and damages
of every kind and character, including any legal or other expenses reasonably
incurred, as incurred, resulting from or relating to or arising out of (i) the
inaccuracy, nonfulfillment or breach of any representation, warranty, covenant
or agreement made by the Seller in this Agreement, (ii) any legal action,
including, without limitation, any counterclaim, that has either been settled
by the litigants or has proceeded to judgment by a court of competent
jurisdiction, in either case to the extent it is based upon alleged facts
that, if true, would constitute a breach of any representation, warranty,
covenant or agreement made by the Seller in this Agreement, (iii) any actions
or omissions of the Seller occurring prior to the Closing Date with respect to
any of the Receivables or Financed Vehicles or (iv) any failure of a
Receivable to be originated in compliance with all applicable requirements of
law. These indemnity obligations shall be in addition to any obligation that
the Seller may otherwise have.
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Article VI
Miscellaneous Provisions
Section 6.01. Obligations of Seller. The obligations of the Seller under
this Agreement shall not be affected by reason of any invalidity, illegality
or irregularity of any Receivable.
Section 6.02. Repurchase Events. The Seller hereby covenants and agrees
with the Depositor for the benefit of the Depositor, the Indenture Trustee,
the Issuer, the Owner Trustee, the Certificateholders and the Noteholders that
the occurrence of a breach of any of the Seller's representations and
warranties contained in Section 3.02(b) that materially and adversely affects
the interests of the Issuer, the Indenture Trustee, the Owner Trustee, the
Certificateholders or the Noteholders in any Receivable, without regard to any
limitation set forth in such representation or warranty concerning the
knowledge of the Seller as to the facts stated therein, shall constitute an
event obligating the Seller to repurchase the Receivables to which such
failure or breach is applicable (each, a "Repurchase Event"), at the Purchase
Amount, from the Depositor or from the Issuer, as applicable, unless any such
failure or breach shall have been cured by the last day of the first
Collection Period commencing after the discovery or notice thereof by or to
the Seller or the Master Servicer.
Section 6.03. Depositor Assignment of Repurchased Receivables. With
respect to all Receivables repurchased by the Seller pursuant to this
Agreement, the Depositor shall assign, without recourse, representation or
warranty, to the Seller all of the Depositor's right, title and interest in
and to such Receivables and all security and documents relating thereto.
Section 6.04. Transfer to the Issuer. The Seller acknowledges and agrees
that (1) the Depositor will, pursuant to the Sale and Servicing Agreement,
transfer and assign the Receivables and assign its rights under this Agreement
with respect thereto to the Issuer and, pursuant to the Indenture, the Issuer
will pledge the Receivables to the Indenture Trustee, and (2) the
representations and warranties contained in this Agreement and the rights of
the Depositor under this Agreement, including under Section 6.02, are intended
to benefit the Issuer, the Noteholders and the Holders of the Certificates.
The Seller hereby consents to such transfers and assignments and agrees that
enforcement of a right or remedy hereunder by the Indenture Trustee, the Owner
Trustee or the Issuer shall have the same force and effect as if the right or
remedy had been enforced or executed by the Depositor.
Section 6.05. Amendment. This Agreement may be amended from time to time,
with prior written notice to the Rating Agencies, but without the consent of
the Noteholders or the Certificateholders, by a written amendment duly
executed and delivered by the Seller and the Depositor, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of
Noteholders or Certificateholders; provided that such amendment shall not, as
evidenced by an Opinion of Counsel, materially and adversely affect the
interest of any Noteholder or Certificateholder; provided further, that such
action shall be deemed not to adversely affect in any material respect the
interests of any Noteholder or Certificateholder and no Opinion of Counsel to
that effect shall be required if the person requesting the amendment obtains a
letter from the Rating Agencies stating that the amendment would not result in
the downgrading or withdrawal of the ratings of
19
then assigned to the Notes and the Certificates. This Agreement may also be
amended by the Seller and the Depositor, with prior written notice to the
Rating Agencies and the prior written consent of Holders of Notes holding not
less than a majority of the Outstanding Amount of the Notes and Holders of
Certificates evidencing at least a majority of the percentage interests in the
Certificates (excluding, for purposes of this Section 6.05, Certificates held
by the Depositor or any of its affiliates), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Noteholders
or the Certificateholders; provided, however, that no such amendment may (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that are
required to be made for the benefit of Noteholders or the Certificateholders
or (ii) reduce the aforesaid percentage of the Notes or the Certificates that
is required to consent to any such amendment, without the consent of the
Holders of all the outstanding Notes and Certificates.
Section 6.06. Waivers. No failure or delay on the part of the Depositor,
the Issuer or the Indenture Trustee in exercising any power, right or remedy
under this Agreement shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power, right or remedy preclude any other or
further exercise thereof or the exercise of any other power, right or remedy.
Section 6.07. Notices. All demands, notices and communications under this
Agreement shall be in writing, personally delivered, faxed and followed by
first class mail, or mailed by certified mail, return receipt requested, and
shall be deemed to have been duly given upon receipt (a) in the case of the
Depositor, to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇▇▇▇, (b) in the case of the Master Servicer, Administrator and
Custodian, to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to
Regions Bank Office of the General Counsel, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: R. ▇▇▇▇ Deer, (c) in the case of the Seller, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇▇▇ ▇▇▇▇, with a
copy to Regions Bank, Office of the General Counsel, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: R. ▇▇▇▇ Deer; (d) in the case of the
Issuer or the Owner Trustee, at the Corporate Trust Office (as defined in the
Trust Agreement), Attention: Corporate Trust Administration; (e) in the case
of S&P, to ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇), ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Asset Backed Surveillance Department; and (f) in the case of ▇▇▇▇▇'▇, to ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ABS Monitoring Department;
or, as to each of the foregoing, at such other address as shall be designated
by written notice to the other parties.
Section 6.08. Costs and Expenses. The Seller shall pay all expenses
incident to the performance of its obligations under this Agreement and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Depositor, in connection with the perfection of the Depositor's, the Issuer's
and the Indenture Trustee's right, title and interest in and to the
Receivables and the enforcement of any obligation of the Seller hereunder as
contemplated by the Basic Documents.
Section 6.09. Representations of the Seller and the Depositor. The
respective agreements, representations, warranties and other statements by the
Seller and the Depositor set forth in or made pursuant to this Agreement shall
remain in full force and effect and will survive the closing under Section
2.02 and the transfers and assignments referred to in Section 6.04.
20
Section 6.10. Confidential Information. The Depositor agrees that it will
neither use nor disclose to any Person the names and addresses of the Obligors
or any other personally identifiable information of an Obligor, except in
connection with the enforcement of the Depositor's rights hereunder, under the
Receivables, under the Sale and Servicing Agreement or any other Basic
Document, or as required by any of the foregoing or by law.
Section 6.11. Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning
or interpretation of any provision of this Agreement. References in this
Agreement to section names or numbers are to such Sections of this Agreement.
Section 6.12. GOVERNING LAW. THIS AGREEMENT, AND ALL QUESTIONS RELATING
TO ITS VALIDITY, INTERPRETATION, PERFORMANCE AND ENFORCEMENT, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ALABAMA
(EXCLUSIVE OF THE CONFLICT OF LAW PROVISIONS THEREOF) APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
Section 6.13. Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
Section 6.14. Third Party Beneficiary. The Indenture Trustee is an
express third party beneficiary of this Agreement and shall be entitled to
enforce the provisions of this Agreement as if it were a party hereto.
Section 6.15. No Proceedings. So long as this Agreement is in effect, and
for one year plus one day following its termination, each of the Seller and
the Depositor agrees that it will not file any involuntary petition or
otherwise institute any bankruptcy, reorganization arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy law or similar law against the Trust.
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date and year
first above written.
REGIONS BANK, as Seller
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
REGIONS ACCEPTANCE LLC, as Depositor
By: /s/ L. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: L. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
22
EXHIBIT A
MATTERS ADDRESSED IN OPINION OF SELLER'S COUNSEL
SCHEDULE I
Schedule of Receivables
-----------------------
[On file with the Indenture Trustee]
SCHEDULE II
Perfection Representations, Warranties and Covenants
----------------------------------------------------
1. General. The Receivables Purchase Agreement creates a valid and
continuing security interest (as defined in the UCC) in all of the Seller's
right, title and interest in and to the Receivables in favor of the
Depositor's which, (a) is enforceable upon execution of the Receivables
Purchase Agreement against creditors of and purchasers from the Seller as such
enforceability may be limited by applicable debtor relief laws, now or
hereafter in effect, and by general principles of equity (whether considered
in a suit at law or in equity), and (b) upon filing of the financing
statements described in clause 4 below will be prior to all other Liens (other
than Liens permitted pursuant to clause 5 below).
2. Characterization. The Receivables constitute "tangible chattel paper"
within the meaning of UCC Section 9-102. Except with respect to Receivables
representing less than 0.03% of the Initial Pool Balance, for which the
related Lien Certificates show World Omni named as the original secured party
under such Receivables as the holder of a first priority security interest in
the related Financed Vehicle (which Lien Certificates and security interests
have been validly assigned to the Seller), the Seller has taken all steps
necessary to perfect its security interest against the Obligor in the Financed
Vehicles securing the Receivables.
3. Creation. Immediately prior to the conveyance of the Receivables
pursuant to the Receivables Purchase Agreement, the Seller owns and has good
and marketable title to, or has a valid security interest in, the Receivables
free and clear of any Lien, claim or encumbrance of any Person.
4. Perfection. The Seller has caused or will have caused, within ten days
of the Closing Date, the filing of all appropriate financing statements in the
proper filing office in the appropriate jurisdictions under applicable law in
order to perfect the security interest granted to the Depositor under the
Receivables Purchase Agreement in the Receivables.
5. Priority. Other than the security interests granted to the Depositor
pursuant to the Receivables Purchase Agreement, the Seller has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed any of
the Receivables, the Seller has not authorized the filing of and is not aware
of any financing statements against the Seller that includes a description of
collateral covering the Receivables other than any financing statement (i)
relating to the security interests granted to the Depositor under the
Receivables Purchase Agreement (ii) that has been terminated, or (iii) that
has been granted pursuant to the terms of the Basic Documents. None of the
tangible chattel paper that constitutes or evidences the Receivables has any
marks or notations indicating that they are pledged, assigned or otherwise
conveyed to any Person other than Indenture Trustee.
SCHEDULE III
Location of Receivable Files
----------------------------
World Omni Financial Corp.
d/b/a CenterOne Financial Services
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇